Strict Vicarious Criminal Liability for Corporations and Corporate Executives: Stretching the Boundaries of Criminalization
January 18, 2014
American Criminal Law Review
Types : Bylined Articles
Under the doctrine that currently prevails in the federal courts of appeals, a corporation is subject to strict vicarious liability for a criminal act by one of its employees if the employee acted within the scope of his employment and intended, at least in part, to benefit the corporation. Similarly, under the doctrine of United States v. Park, a corporate executive is subject to strict vicarious liability for a criminal act by one of her employees if the executive’s position gave her the ability to prevent or promptly correct the act. This article examines both doctrines of strict vicarious criminal liability. Part I begins by considering the history of strict liability crimes in general. Parts II and III examine the doctrines of strict vicarious criminal liability for corporations and corporate executives, respectively, concluding that both regimes are unfair, are bad public policy, and should be abolished. Part IV proposes two reforms to mitigate the adverse effects of strict vicarious criminal liability for corporations and corporate executives: a requirement that a statute clearly provide for such liability before it can be imposed, and an affirmative defense based on a corporation’s compliance policy.
The article is forthcoming as 51 Am. Crim. L. Rev. 79 (Winter 2014 issue).